Honoring the Law, Extending Mercy

A few months ago, The New York Timesran a front-page story about the strong support coming from evangelical leaders like Richard Land, Bill Hybels, Mat Staver, and Samuel Rodriguez for a comprehensive reform of our nation’s immigration laws. While I appreciated the article as a whole, I thought one particular paragraph was misleading: the article implied that the majority of evangelical leaders, who support immigration reform, do so because of Scripture’s command to love and ensure equal treatment for the immigrant (Lev. 19:33-34 and elsewhere), while those evangelicals who oppose reform heed Romans 13, where Paul instructs the Church to be subject to the governing authorities.
A lot of Christians wrestle with the issue of immigration in a way that pits love and mercy on one side with law and justice on the other—and then feel conflicted. In a theological context, we’re promised that “mercy triumphs over judgment” (James 2:13), and a few Christians do advocate amnesty for undocumented immigrants precisely because we who could not be saved by fulfilling God’s law are saved by God’s grace (just a synonym for amnesty) rather than through any of our own merit (Eph. 2:8-9). Advocates of amnesty for undocumented immigrants say that, as recipients of grace, they do not want to be stingy in extending it to others and risk the judgment that Jesus told of in his parable of the unmerciful servant (Matt. 18:21-35).
While I respect that view—and agree that there ought to be a place for mercy in our policies—I don’t share it entirely. Having interacted with many of the evangelical leaders who have advocated reform, I am confident that they do not affirm this view, either. The role of the state, they would note (and I would agree), is different than that of the church. While they would likely agree that grace is central to our theology and affirm the importance of forgiveness in interpersonal relationships, they do not endorse amnesty as the best public policy. None of them has come to their position by elevating Leviticus 19 over Romans 13.
To the contrary, most evangelical leaders (including each of those mentioned above) have stressed the importance of both showing kindness to undocumented immigrants while also respecting the ideal of the rule of law that we find in Romans 13. Evangelical support for Comprehensive Immigration Reform is built around the idea of restoring the rule of law to a system where, after decades of selectively ignoring the law, it has begun to lose its meaning.
You see, our current system is set up in a way that would be destructive to the American economy if fully enforced. Our employment-based immigration system—the basic structure of which has not been altered in decades—provides just 5,000 permanent resident visas per year for low-skilled workers, meeting just a tiny fraction of the demand for employees created by our market economy. Because of political pressure from groups whose stated mission is to limit population growth in the U.S.—who have successfully convinced many Americans that, contrary to established economic theory, immigrants are harmful, rather than beneficial, to the American economy—our Congress has not seen fit to adapt the legal immigration system to provide the additional labor flow necessary for sustained economic growth.
But the alternative—strict enforcement of these outmoded laws—has never been a reasonable option either: no politician wants to preside over an era of skyrocketing prices for the basic goods and services that immigrant laborers make possible. So, for decades now—under the leadership of both major political parties—we simply do not fully enforce the law, either against immigrants or against the employers who hire them unlawfully. The law says that the estimated 11 million immigrants currently present unlawfully should be deported, but almost no one in Washington is really serious about that possibility, because they know that the economic consequences would be disastrous ($2.6 trillion in lost Gross Domestic Product over a decade, according to one economist).Instead, as a society, we have looked the other way as desperate migrants—many of them fleeing conditions of poverty beyond what most Americans can fathom—violate the law by entering or overstaying a visa and then accepting employment without authorization. It is illegal under the law—no doubt—but just as many of us presume that a 55 mile-per-hour speed limit doesn’t really mean it is wrong to go 58 or 59 (or, in some parts of the country, much faster), immigrants have understood the consistent lack of enforcement as a winking signal that our society did not really mean those laws.
There is nothing inherently unjust about having borders and controlling the number of immigrants who are allowed to enter: that is a legitimate function of the state. This becomes an issue of injustice when we avert our eyes as the law is violated, then subsequently deny those who have broken the law any rights, refusing any responsibility to treat them as we would want to be treated (Luke 6:31). We require them to pay Social Security taxes—$12 billion, cumulatively, in 2007—but deny them any benefits. If they are a victim of crime, in some parts of the country they could be asked about their legal status, detained, and deported if they notify the police, making them open targets for criminals. So long as they work quietly and for low wages, sometimes in conditions that fail to meet minimum safety requirements, they will probably be okay, but if they raise their voice against these abuses they risk arrest, detention, and deportation. After all, the common sentiment goes, they broke the law.
Evangelical leaders realize that this status quo is a broken mess; they are not advocating that mercy for immigrants should trump the law, but that we must restore the rule of law, prescribing a punishment for unlawful entry and unauthorized work that fits the crime (think: the equivalent of a fine for speeding down the highway, rather than having your driver’s license revoked). The Comprehensive Immigration Reform that evangelical leaders have advocated would require those here unlawfully to pay a monetary penalty and earn the right to become lawful permanent residents, but it would also insist that in the future we put into place a reasonable number of visas, tied to the priorities of economic growth and family unity, and that from here on out we strictly enforce the law, both against immigrants and employers who break the law.
That sort of a plan brings together the biblical mandates to be subject to the governing authorities (Romans 13) and to show love and kindness to the immigrant (Leviticus 19), rather than pitting two biblical commands against one another. As pastor and theologian John Piper has said, “it gives honor to the law and it gives mercy to the immigrants.”

I agree with this, except that the problem with “Comprehensive Immigration Reform”, as attempted in 2007, is bad policy because it gets the cart before the horse. Being compassionate and merciful doesn’t require us to check prudence at the door.

When a patient who is bleeding to death comes into the ER, doctors do not clean the bloody mess first; they stop the bleeding first. When the patient is no longer bleeding, then they clean up the mess and get him ready for a long-term solution (surgery, PT, rest, whatever).

Our approach should be analogous: do what it takes to stop the inflow by enforcing at the border and with employers (and make sure it’s working – it will take time), and then address the status of those who are already here, and then address a permanent and comprehensive reform. It can’t and shouldn’t be done all at once.

I’ve gone back and forth on this myself—passing a big, “comprehensive” package of laws is definitely more complicated than a piecemeal approach, so why not just approach things item by item? I wanted to explain at some length (longer than I had for the initial blog piece) why I’ve concluded we need a comprehensive approach, similar to what was proposed (by a Republican president, I would note) in 2007:

1) To secure the borders without addressing the reason that immigrants come—the possibility of work, even for those without employment authorization—is exactly what we have been trying to do for more than a decade. Between 2000 and 2009, we doubled the number of Border Patrol agents (from 8,580 to 17,400), and we’ve also added agents from other agencies (the National Guard, the Drug Enforcement Agency, etc.). But the number of unlawful entrants kept rising… until the economy started faltering, and then there was a dramatic drop (which may have been in part a function of border security, but probably had a lot more to do with the lack of new jobs available in the US). We now spend $7,500 of taxpayer dollars for every person we apprehend at the border, compared to $1,400 as recently as 2005 (see a compelling new report by the National Immigration Forum at http://www.immigrationforum.org/images/uploads/2011/ImmigrationEnforcementOverview.pdf. Contrary to popular perception, we have (in recent years, at least) made efforts to secure the border. But we’ll keep pouring money at this problem but never fully secure the border if we aren’t willing to address why it is that immigrants come: to work. (And, I should also note that at least 40% of undocumented immigrants enter lawfully, with a visa, but overstay, so the US-Mexican border cannot be the sole focus of our attention, as it so often seems to be for Congress, suggesting to me that our society is less concerned about European and Asian immigrants who unlawfully overstay their visas than about the Latino immigrants who cross the border unlawfully, though they are both breaking the law).

2) So, as you suggest, we need to go beyond border security to workplace enforcement. As I note, I think we do need a functional workplace enforcement system that punishes employers (with a serious penalty) for hiring people unlawfully—but I don’t think that it works to phase it in. Here’s why: if we put into place a biometric-based system that required a Social Security card tied to my fingerprint, it would probably effectively weed out the vast majority of immigrants working unlawfully (the current proposal, called E-Verify, does not work very well because it can be fooled very simply, by providing a Social Security number that matches the right name, creating a moral hazard and an incentive to actually borrow or steal a real Social Security card, which can actually hurt people, rather than inventing a fictional number, which is most common now and is illegal but not usually harmful).

So suppose we put into place a secure biometric Social Security card and employment authorization system, with serious penalties that tied employers’ hands and forced them to fire their undocumented workers. But what would happen then? Without addressing other broken parts of the system concurrently, I see a few consequences:

a) Companies, particularly in certain crucial industries like agriculture, restaurants & hospitality, and construction, will have a critical shortage of employees. Which is one reason why, on a political level, they’re not easily going to let this policy happen in the first place; corporate interests tend to have well-funded lobbying arms. This would be one issue where I think there would be bipartisan opposition: many Republicans would be sensitive to pressure from the Chamber of Commerce (which has sued the government over the use of E-Verify), while Democrats would be responsive to opposition from immigrant groups and coalitions (whose members, of course, do not want to lose their jobs).

b) If somehow there were the political will to do this, and the adult-share of the nation’s 11 million undocumented immigrants were fired overnight, the economy would face major difficulties without their presence in the job market. To that, of course, some would say that the 10% or so of American citizens who are presently unemployed would take the jobs vacated. But many of them would not: many would rather be unemployed (especially with the option of an unemployment check) than to do the extremely difficult, labor-intensive, and low-paying jobs that immigrants are willing to do. Employers would have to pay salaries many times what they currently pay—which might force many of them out of business, firing the US citizens who presently are in management and executive positions. Others would move their operations abroad. And others would continue to exist, but prices for basic goods and services would expand dramatically.

c) It’s also not entirely right to think that all of these immigrants would simply lose their jobs and, for lack of work, return to their countries of origin. Some would, of course, but many others, especially those who are rooted in the U.S., having been here for years and with children who are more American than anything else, will struggle in every way possible to stay. They’ll come to churches and other non-governmental sources of assistance—putting churches in a difficult humanitarian question: I expect that most will provide food at their food pantries, Matthew 25 in their minds, regardless of if someone has a green card, but by doing so they’ll prolong these people’s presence in the U.S.

There’s also the fiscal reality that, while these undocumented immigrants are entirely ineligible for public benefits themselves, their US-born kids (citizens under the 14th amendment) are eligible for public benefits. Most of them are not receiving those benefits now, because their families are self-sufficient economically—but once their parents lose their jobs, we should expect a massive increase in poverty and, as a result, applications for public benefits.

Others will simply transfer their work deeper into the black market, working for cash under the table, doing odd jobs or other versions of “self-employment,” and relying on an informal economy. So they would go from tax-paying unauthorized workers to tax-avoiding unauthorized workers, working only for the most unscrupulous of employees willing to flagrantly violate the law, and thus also opening themselves up further to exploitation.

d) Finally, on an ethical level, I do not think it is just to force these undocumented immigrants, against whom we have failed to enforce the laws for decades, into unemployment. Yes, they broke the law by accepting employment, but I do not think it is fair after having closed our eyes (as a society) to their violation of law and their employer’s violation of law for so long, to enforce it overnight. Imagine how you would feel if, having driven 3 miles over the speed limit for twenty years, you were pulled over and—instead of just given a speeding ticket, which you might complain of in itself for such a seemingly minor violation—had your license and right to drive taken away entirely. I know that if that happened to me I’d think it was unreasonable and unfair, and that they clearly had not meant those laws and it was unreasonable to enforce them now.

For those reasons, I think the only real workable solution is to, all at once, put into place a workplace enforcement system, increase border security efforts where we have evidence to believe they will be effective, put into place a new visa system to make sure lawful migration can occur in the future to meet economic needs and keep families unified—and require those here unlawfully to come forward, pay their fine, and enter into a probationary status that would include work authorization. They wouldn’t get their green cards right away—they’d need to further establish their worthiness for the green card (a prerequisite to citizenship) by working, paying taxes, working on learning English, and avoiding any criminal behavior for several years (maybe 5 or 6?). But they would be able to stay in their jobs, avoiding the crisis of mass layoffs and a shortage of labor that would harm the economy.

That’s my view. I certainly agree this issue is incredibly complex, and I think we need healthy discussion and debate. I wish that our Congress would get to that level of healthy, honest dialogue, because I think there really is space for reasonable compromise.

Thank you, thank you, thank you. This is the best, most concise treatment of the issue I have ever read…and respects the position of my conservative Christian friends to give us common ground. I will refer to your words many times…

Matt, the Spirit of God is doing wonders through you and your posts here.

I do have two questions:
-Have you considered that mercy is a Romans 13 principle, in that it is very much a long-standing principle of U.S. law and justice?
-If you advocate comprehensive immigration reform, which requires the writing of laws, what standard does God have for governing authorities who do the writing? Romans 13 is not the answer, as it is for the governed, not the governor.

In regard to my first question, please consider that U.S. law is thoroughly embedded with mercy or some variant of mercy. Examples include traffic ticket warnings, prosecutorial discretion, convictions that require evidence beyond a shadow of a doubt, plea bargains, statutes of limitations, tax amnesties, bankruptcy, etc. We the People have designed our government to walk away from the transgressions of the people in certain contexts, for a myriad of reasons.

As to my second question, since Romans 13 doesn’t kick in until the President signs the law, and Proverbs 8:15 is for the moment he picks up the pen, isn’t Romans 13 an instruction to the foreign-born Christians at the border and within our borders who struggle with our difficult immigration system, whereas Proverbs 8:15 is the more relevant verse for the citizens in this democracy who get to decide how the law will treat those foreigners? Perhaps you’re saying with reference to Romans 13 that as long as the law is what it is, Americans are like King Darius, guilty of having written laws in need of comprehensive reform, but forced to watch the potentially gruesome consequences of the poorly written law playing itself out, as in a lion’s den. Is that intentional?

I wonder if it is, because it appears that you are saying in your first few paragraphs that treating a foreigner equally is merely a spiritual mandate, having nothing to do with governing authorities. But Proverbs 8:15 and other verses tell us that if the governing authorities in this country align themselves to God’s will, they write laws that are just (Proverbs 8:15).

What I’m missing in your post is that mercy doesn’t just give honor to the immigrant – it gives honor to the law.

Since you are so completely on the mark on immigration in general, perhaps you have thought of the concepts I raise, and that is the reason for my two questions.

(Because I’m a lawyer in my day job, I’ve laid out what a mercy-infused reboot of immigration law would look like, here.)

I really appreciate this feedback. I hadn’t thought about the many ways that some degree of mercy is already built into our laws, but that’s absolutely true—and should be true, I think.

At the end of the day, I think that what we need is a punishment that fits the crime—that takes into account the circumstances under which the crime was committed. So current law says that if you are present unlawfully, you are deportable. We don’t need to pass any new laws to just deport everyone. But I think we ought to inform our laws with an element of mercy—a bankruptcy option, as you suggest on your blog—that takes into account a) the desperation that most (not all) undocumented immigrants were in that compelled them to migrate, b) the complicity of our society by rewarding their unlawful entry or visa overstay with a job, allowing them to contribute to our economy in ways from which we all benefit, and c) the unfairness of enforcing a law years—sometimes decades—after the offense was committed, and after we’ve allowed you to pay taxes, learn English, etc. I think that the sort of Comprehensive Immigration Reform that has been proposed by both President Bush (a Republican) and President Obama (a Democrat) would instill some degree of mercy to our system, while also restoring the rule of law.

I do think that the question of to whom Romans 13 applies is a good one. I’ve made the point elsewhere that I don’t really worry about Romans 13 personally: as “the governed,” I’m not doing anything unlawful as it relates to immigration. I’m not hiring them, I’m not smuggling them in, etc. I do give them legal advice (with appropriate accreditation from the Board of Immigration Appeals), help some of them with their homework, teach them Sunday School, and advocate to change laws, but all of those activities are completely lawful, at least in the State of Illinois (when some of those activities become unlawful, as could have been the case if HR 4437, the Sensenbrenner bill, would have passed the Senate after being passed by the House of Representatives back in 2005, that is when I think I need to ask at what point civil disobedience—obeying God rather than man as suggests by Acts 5:29—is called for).

I agree that Romans 13 is written to the governed, which makes it a difficult passage for undocumented immigrants themselves. I struggle with this question—and am glad that I’m in a legal counselor role, rather than a pastoral role as I discuss the issue with my undocumented friends—should an undocumented immigrant leave the country in an effort to be fully subject to the government? I know some who have felt that God was convicting them that they needed to leave, and I have a great deal respect for that decision. But I know others whom I think are trying to be faithful who have decided to stay: one pointed to 1 Timothy 5:8 and said that, at the end of the day, he’d rather provide for his family (and not be guilty of having “denied the faith” and being “worse than an unbeliever”) even if that means taking his chances with his governmental authorities (which, Romans 13 tells us, “do not bear the sword for no reason.”) I also appreciate the new NIV’s translation of Romans 13—it tells us to “be subject to the governing authorities” rather than to “submit” to them, and in some ways I think there’s a big difference. My undocumented neighbors would say they are subject to the governing authorities, and if they’re ordered deported, they’ll leave, but the government in its discretion has decided not to enforce this law that is not actually in anyone’s interest. I’ve heard the same argument for why the Civil Rights protesters who defied Jim Crow laws by sitting down at a segregated lunch counter were actually not violating Romans 13: they were subject to the governing authorities, and they proved so by going to jail, rather than violently resisting arrest. (I believe that John Howard Yoder, writing from a Mennonite perspective, addresses this topic from this perspective in The Politics of Jesus, which I need to go re-read one of these days).

That leaves those who govern (our legislators): they certainly should take their cue from Proverbs 8:15, seeking justice in their edicts. But I also think that Romans 13 does speak to them in that it defines the purpose of law, from God’s perspective: to maintain order and to do good. I think—perhaps I’m stretching what’s actually in the text—that the thrust of Romans 13 would guide us toward the rule of law. And my point in this post was that our current system does not respect the rule of law; without serious reform to bring our immigration laws into line with the needs of our market economy, it mocks the rule of law. There are many victims from our broken immigration system—the immigrants themselves, low-skilled American workers who have to compete with exploit-able undocumented workers, employers who want to follow the law but are not able to compete with those who violate the law—but I think the law itself is one of the victims.

Above all, I appreciate something I heard Dr. Daniel Carroll of Denver Seminary say this weekend: Romans 13 is important, but let us not read it outside of the context of Romans 12, which tells us that a followers Christ we are to “not be conformed to the patterns of this world,” to “show hospitality,” and to “be willing to associate with people of low position.” I wish more Christians would start their conversations about immigration with Romans 12 before they move on to Romans 13.

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